Lord Judd: My Lords, the Refugee Children's Consortium brings together a very wide cross-section of voluntary agencies working with children in a refugee situation and throughout the United Kingdom. That consortium is deeply concerned about the protection of the rights of appeal for children in one important respect. Section 83 of the 2002 Act generally provides a person who is refused asylum with a right to appeal even though he or she has been granted leave to enter or remain for other reasons. However, Section 83(1)(b) denies that right if the leave granted amounts to no more than one year. That predominantly affects unaccompanied children seeking asylum. In 2006, unaccompanied children accounted for 84 per cent of all grants of discretionary leave, despite constituting only 13 per cent of applications.
	The recent change to the discretionary leave policy lowered the age to which discretionary leave would be granted from 18 to 17&frac12;, with effect from last April. Many more unaccompanied children seeking asylum will be caught by Section 83. Currently, about 1,500 children are aged 16 or 17 on arrival. The majority of those are likely to be over 16&frac12; by the time an initial decision is made on their asylum claim and are, therefore, likely to be denied access to the appellate system while they remain children.
	In Grand Committee, my noble friend restated the Government's position that if leave is granted for a period of less than 12 months,
	"it is reasonable to expect the applicant to wait until the expiry of that leave before he or she is entitled to bring a statutory appeal".—[Official Report, 18/7/07; col. GC 90.]
	However, this response assumes that the appeal is delayed only until the point at which leave expires, while in reality the wait is much longer, because, before an appeal can be launched, the applicant must await a decision on their extension application. In the past, applicants have been left waiting for many months and years for that decision. Although the new asylum model aims to reduce such delays, the target for resolving cases within six months does not work for these cases. Although the Home Office may argue that the target is met by the grant of discretionary leave within six months of the initial asylum claim, Section 83 prevents these cases being resolved. The risk is that the new process achieves nothing for these cases and individuals remain waiting for many years to resolve their case.
	The current delay in settling an applicant's status discriminates against children. In Grand Committee, my noble friend refuted this contention on the grounds that Section 83 is not restricted to asylum-seeking children, but rather applies to all those granted leave of 12 months or less. What he failed to acknowledge was that those affected by the provision are nearly all children. The only other group for whom discretionary leave is habitually granted for less than 12 months is those excluded from protection under the refugee convention and the Government have admitted in the course of this Bill that these are very few in number,
	"possibly tens rather than hundreds".—[Official Report, Commons, UK Borders Bill Committee, 13/3/07; col. 310.]
	It was argued in Grand Committee that the significant lapse of time between the initial application and the appeal is seriously problematical for children and can result in significantly less favourable treatment of them in the appeals process. At a significant time after the relevant events, it is much harder to gather evidence for appeal. For example, many children will find it difficult to recollect important details and it is often impossible to trace important witnesses.
	The lapse of time is in contradiction to a central pillar of the new asylum model, by which the Home Office seeks to improve initial asylum decision-making. The NAM ordinarily requires the Home Office decision maker to defend his or her refusal in person or at any appeal. His provides a strong incentive for the decision maker to make a careful decision. However, if the decision-maker knows that no appeal can be brought for several months, possibly years, the incentive is lost. Some children lose contact with their lawyers before their appeal is heard, which results in many being unrepresented at the hearing.
	As immigration judges are required to consider the circumstances pertaining at the time of appeal, it is always likely to be disadvantageous to children to have their appeal dealt with a year, at least, after the decision to refuse asylum. If the length of delay means that the young person's appeal is heard after they become 18, this can put them at a further disadvantage. This is chiefly because children benefit from a more generous application of the Legal Services Commission merits test for legal aid funding than adults. If the first chance to appeal against the refusal of asylum occurs once the child has become an adult, they will be merits tested at the adult standard and may, therefore, be denied representation of their appeal.
	The effect of Section 83, the consortium has persuaded me, is to delay a young person's access to an appeal before the Asylum and Immigration Tribunal. That makes the social worker's job of planning for the young person's departure—they charge for this work—virtually impossible because the young person concerned will always have a reasonable chance or hope that the decision to refuse asylum will be overturned. I beg to move.

Lord Judd: My Lords, Save the Children has drawn my attention—and, I believe, that of other noble Lords—to an injustice, as it sees it, that needs to be addressed. In doing so, it is supported by the National Children's Bureau, the Children's Legal Centre, the National Association for Youth Justice, Barnardo's, the Children's Society, and NACRO—not an inconsiderable body of highly relevant experience.
	Clauses 32 to 39 provide for the automatic deportation of non-British citizens through a deportation order made by the Secretary of State when they have committed certain offences. Clause 32(2) and (3) mean that mandate we deportation would extend to those who have committed a less serious offence. The person would have had to have been sentenced for a period of imprisonment of at least 12 months or committed an offence covered by the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. These criteria mean that the number of crimes which would be caught under the provisions is large and includes some relatively minor crimes such as fly-tipping and possession of cannabis for personal use.
	Save the Children, with all its experience, is deeply concerned at the implications of all this, as are the other organisations I mentioned. Clause 33 lists a number of exceptions where the Secretary of State may not make a deportation order. However, exception 2, Clause 33(3), provides for an exemption from Clauses 31 to 38 only if the person is under the age of 18 at the age of conviction. Someone who commits an offence when they are under 18, but are not convicted until after their 18th birthday, would therefore be eligible for automatic deportation under these new proposals. Given the wide range of offences concerned, it is particularly worrying that Clause 33 provides for the automatic deportation of a person who committed an offence when he or she was a child.
	All of us who are concerned recognise that the Government seek to address their obligations through exception 2. However, the clause as it stands will not fulfil its obligations. It is likely to give protection only to younger children and will not guarantee protection for those aged 16 or older, given the likelihood of their having reached their 18th birthday before they are convicted.
	I cannot see how Clause 33(3) is compatible with Articles 37 and 40 of the UN Convention on the Rights of the Child, which gives specific rights to all children who commit crimes. Article 1 defines a child as,
	"every human being below the age of 18 years".
	The Committee on the Rights of the Child's recent general comment on children's rights and juvenile justice states that,
	"every person under the age of 18 years at the time of the alleged commission of an offence must be treated [in accordance with] the rules of juvenile justice".
	Therefore, a person who commits a relevant offence when a child must not be eligible for automatic deportation regardless of whether they are over 18 by the time they have been convicted for it.
	Disturbingly, the clause as it stands could also mean that people who have committed the same offence at the same age will be treated differently depending on the length of time between the crime being committed and conviction. For example, person A commits an offence when she is 17 years and six months. She is convicted within two months and is not eligible for automatic deportation. Person B commits the same offence when he is also 17 years and six months. His case takes longer to come to trial. He is not convicted until eight months later. By this time he has turned 18 and is eligible for automatic deportation.
	My noble friend argued in Grand Committee that certainty was important and that the date of conviction could be more certain than the date of the offence. But surely what should matter is whether the person was or was not a child when the offence was committed. Surely the certainty of the principle that no one who commits a crime under the age of 18 can be automatically deported should take precedence.
	Another important issue is that Clause 33 could result in people close to their 18th birthday falsely admitting guilt to speed up the process in order to ensure that they are convicted before they turn 18 so that they will not be eligible for automatic deportation. The Government recognised in the Commons Public Bill Committee that this issue could arise. Their suggestion of combating such incentives through the inspectorate, the Crown Prosecution Service or greater transparency in the system, must be welcome. However, this amendment would ensure that the situation would not arise in the first place.
	Once more, I refer to the powerful words of my right honourable friend the Prime Minister about children at the Labour Party conference. This amendment will enable a policy which directly contradicts the Prime Minister's intention to be put right and to enhance the fulfilment of his highly civilised objective. I beg to move.